Open Thread: “Is Antonin Scalia Still Relevant?”

I don’t agree with all of his interpretations, but there’s an interesting Atlantic post from Garrett Epps, “novelist and legal scholar”, on “the end of the Scalia Court and the beginning of the Roberts one“:

… Though the faces will be the same, the Court that appears from behind the curtain on October 1 will not be the one that vanished behind it on June 28. The last Term will have rearranged relationships, alliances, and lines of power. The Court is now, in fact as well as name, the Roberts Court. The Chief Justice is the premier player both sides must deal with. His ascent may coincide with a significant fall.

October 1 may be the first day of the post-Scalia era.

I have flashback dreams of the agonizing 2011 term… [F]or me the winning words were: “That’s enough frivolity for a while,” uttered by the Chief Justice to Scalia during the final day of the health-care marathon. Scalia had interrupted argument of this generation’s most important case to begin riffing on an old Jack Benny radio routine. The Chief Justice was not amused. He shot a venomous look at Scalia and told him, in barely civil words, to shut up. That same look flickered across Roberts’s face on June 25, when Scalia embarrassed the Court with his rant against Obama during the opinions on the Arizona case. (That monologue, I think, may have been the inspiration for Clint Eastwood’s speech in Tampa.)

For years it has been clear that Antonin Scalia assumes he is the smartest, funniest, most important person in any room. I don’t think John Roberts agrees….

I have always assumed that Roberts considered himself the humble acolyte serving Cardinal Scalia loyally on all topics; if he’s finally realized who’s actually holding the big gavel… well, I’m not sure it will be a better court for those of us in the reality-based community, but watching the fireworks will at least be a diversion.

69 replies
  1. 1
    Hill Dweller says:

    If Roberts’ ascendancy hastens Scalia’s retirement, I’m all for it.

  2. 2
    EconWatcher says:

    Roberts’ opinion on ACA gives reason for hope, but even more reason is the abuse he has most likely experienced because of it. I suspect the reaction has been a clarifying event for him.

  3. 3
    Soonergrunt says:

    If Roberts, the author of the ACA opinion is taking charge of his court, I’m for it.
    He’s not a liberal. But he is (or appears to style himself as) a right-leaning pragmatist.

    It’s a start.

  4. 4
    Brachiator says:

    I have always assumed that Roberts considered himself the humble acolyte serving Cardinal Scalia loyally on all topics

    Chief Justice always has considerable power, especially when assigning the writing of opinions. And Roberts never struck me as someone who was going to bow down to anyone, not even to Mad Dog Tony Scalia.

    Poor Mad Dog. He thought that Justice Souter was going to be his willing acolyte, but had to settle for Justice Thomas.

  5. 5
    Geoduck says:

    Scalia will either leave the Court feet-first, or retire when a GOP president gets elected.

  6. 6
    dr. bloor says:

    @Hill Dweller: To the extent he has any influence, there’s Roberts’ dilemma: the narcissistic and increasingly disinhibited asshole whose vote you can count on, or a replacement with intellect and integrity who will seldom see things the way you do?

    I think Scalia probably retires next term in any case. He’s making trouble because he’s bored and he knows he peaked.

  7. 7
    EconWatcher says:

    By the way, I recently ran across some old Rita Coolidge albums from the 70s. I was just a kid at the time and don’t remember her.

    Maybe older folks can tell me, was she as impossibly beautiful as she looks on those album covers?

    I mean, wow. That’s the most beautiful woman I’ve ever seen (except my wife, of course).

  8. 8
    Poopyman says:

    As long as Fat Tony has a vote in the USSC he’s relevant. If JR takes away his toys and makes it no fun for him anymore, then I’ll be glad to pitch in for a retirement present.

  9. 9
    Zifnab says:

    For years it has been clear that Antonin Scalia assumes he is the smartest, funniest, most important person in any room. I don’t think John Roberts agrees….

    While that comment did make me gag a little, I do appreciate optics. Obama put Sotomayer and Kagen on the bench because they thought they’d make alliances and friends. Reagan put Scalia on the bench and Bush Sr put Thomas on the bench because they wanted to flip liberals the bird.

    Looks like Roberts warmed up to the serious professional academics and decided to set aside the class clowns. It’ll warm the cockles of my heart of Roberts goes full Souter in a few years.

  10. 10
    NobodySpecial says:

    Since it’s an open thread, I’m gonna pimp a Kickstarter for a really nice guy I know and his company.

    I got to demo his game Specimen at Rockcon 2011, and had a blast with it. I know there’s a bunch of gamers on here, and this one is the variety of fun that a pair of trash talking buddies are built for. If you’ve ever played Munchkin, think Munchkin meets Alien meets a board.

    Here’s the Kickstarter site. There’s also a play demo video here with some exposition, but it’s a bit dry and boring; I’m sure you can easily dub in some of your own dialogue when Booth gets eaten. (Oops, spolier!)

    Thanks in advance.

  11. 11
    trollhattan says:

    Anybody see Jack Kingston on Maher the other day, still weeping over Roberts’ drowning his kitten (or so I concluded)? My god, these people don’t take perceived slights lightly, even when it’s in defense of that Constitution thingie they pretend to revere.

  12. 12
    penpen says:

    @dr. bloor: There is no way in hell Scalia willingly retires while Obama is president.

  13. 13
    EconWatcher says:


    I do believe it’s possible, especially if the wingnuts abuse him enough.

  14. 14
    MBunge says:

    Roberts doesn’t appear to be an ideological whack job. He does appear to be a handmaiden to Big Business, but that still makes him clearly superior to the types who would like to wipe away the last 100 years of social and economic advancement.


  15. 15
    srv says:

    Scalia was not a man smart enough to know when he had won. He had to double down freak and rile an ally who has some reverence for the institution.

    Now Scalia has to wait at least another four years to be free and be relevant again. Hopefully, he won’t get lucky.

  16. 16
    trollhattan says:

    This. I assume he and Silent Clarence have compiled one hellofa pr0n collection, and that alone will keep them cashing those checks.

    I don’t think, by the way, that remaining seated means they can’t still collect that sweet, sweet Wingnut Welfare, via the speechifying circuit.

  17. 17
    srv says:

    One thing we may have to worry about is Kennedy swinging right because he’s p.o.’d at Roberts also.

  18. 18
    cmorenc says:

    @dr. bloor:

    I think Scalia probably retires next term in any case. He’s making trouble because he’s bored and he knows he peaked

    No, Scalia will never willingly retire while Obama is in office and will thus name Scalia’s replacement. Scalia knows that Obama’s next appointment will be of similar tenor as his first two, i.e. justices strongly inclined to decide cases in dramatically different direction than Scalia, in a manner undoing much of his judicial life’s work.

  19. 19
    eric says:

    i respectfully dissent…Roberts dislikes Scalia’s clown act because it makes for too much attention when Roberts wants to do his doing under the radar. I dont think more or less conservative has anything to do with it. This is roberts way of saying — if we are going to eff the people let’s just make sure we dont announce it ahead of time or brag afterward..scalia is a blowhard.

  20. 20
    LD50 says:

    Imagine how unimaginably ugly it’d be if another position on the SCOTUS came free with Obama in the White House but with GOP control of House and Senate. I wouldn’t put it past the GOP to literally try and keep the seat open until there’s a Republican in the White House.

  21. 21
    chris says:

    I wonder how much Roberts might do to make Fat Tony miserable and chase him from the Court. I wouldn’t underestimate how unpleasant Scalia might find it to suddenly be an adversary of the Chief Justice. That would be new to him, and if I read his personality right, it’ll make him seethe every day he has to deal with it. I think Fat Tony may quit out of spite, which he has in seemingly limitless quantities.

  22. 22
    jgaugust says:

    I’m particularly afraid of Roberts, way more than Scalia. We all know where Scalia’s interests lie and that he is nothing more than a GOP shill on the Court. Roberts’ decision in ACA is immediately helpful, but he does get rid of a major commerce clause argument that many scholars believed was completely legal and rational.

    Lots of people think ACA will be a sort-of Marbury v. Madison situation where the “winners” got their short term win, but lost significantly in the long term.

    Roberts is undoubtedly smarter than Scalia. For that reason along, he scares me. Our only hope is that his well-known deference for the Court as a neutral institution keeps him in check.

  23. 23
    Spaghetti Lee says:

    I have nothing to add other than Tony Scalia can go fuck himself with a hot cactus. Him retiring out of sheer spite towards Roberts would be a gift from heaven.

  24. 24
    The Moar You Know says:

    Roberts is a vain egomaniac.

    This is not a bad thing, in fact, it’s a great development.

    He wants to be a Big Man Of History. Big Men Of History don’t get to be Big Men Of History by being somebody’s partisan bitch, or by letting their subordinates act like children in public.

    Roberts has medical issues. He doesn’t know how long he has (I’m betting a long time) but he’s not going to fuck around and wait for Fat Tony and Silent Thomas to die. He knows he’s already going to have to deal with the Bush V. Gore fallout for the rest of his life. He’s not going to allow any more of that shit on his watch.

    I’m never going to like him, but he’s going to run this Court with an iron hand, and frankly that’s needed to happen for the last twenty years. If he does so at least I can respect that.

  25. 25

    @Hill Dweller:
    From your lips to FSM’s noodly appendages.

  26. 26
    dr. bloor says:

    @cmorenc: Perhaps. But never underestimate the capacity of a dementing, rage-driven narcissist to act irrationally. It’s possible, if not probable, that some objectively trivial but far more personal issue will lead him to tell Roberts and the world in general to bugger off. Obama is an abstract idea for him; he has to deal with Roberts on a daily basis.

  27. 27
    Bill in Section 147 says:

    @EconWatcher: Never saw her in person but would never complain if it was in my dreams. I really enjoyed Anytime…Anywhere Album. Haven’t thought of her for a while. Thanks for bringing it up. Errm. I meant her, bringing her up. Yeep.

  28. 28
    NCSteve says:

    Roberts ruled the way he ruled solely because he knew it would exhaust the Court’s political capital. He needs that capital to cover his ongoing project to covertly gut post New Deal Commerce and civil rights jurisprudence of by claiming existing precedent means the opposite of what it means, so no way was he going to blow it on the health care law.

    Roberts is not our friend. The only thing that could make him our friend if is his old friends stay so mad at him that he’s permanently banished from their treefort.

  29. 29
    Villago Delenda Est says:

    I think Scalia’s a bit pissed that Roberts, this fucking NOOBIE, was named as Chief Justice, not that Scalia was elevated to that status, and Roberts gets on the court as one of the eight, not the Chief.

  30. 30
    Linda Featheringill says:

    We expect that Roberts has been getting hell for his ACA decision but do we have any evidence of that? Gossip? Unnamed sources?

  31. 31
    Michael G says:

    Maybe Scalia will retire, but on the other hand, he’s been one cannoli away from a heart attack for years now. It’s a race against the clock at this point.

  32. 32
    steve says:

    Because of Ginsberg (and possibly Breyer), if Rmoney wins this country will be seriously boned.

  33. 33
    Darkrose says:

    If you want to support the Chicago teachers from afar, here’s one way, from Dave Zirin:

    There is no winning a game when the rules have been rigged, but there is power in numbers. There is power in struggle. And there is power in pizza. The easiest way to support Chicago teachers is to order them a piping hot pizza pie. You can get food to the picket lines by calling Gus or Daisy at Primo’s Pizza at (312) 243-1052. When pizza shows up to the tired picketers, everyone’s spirits are lifted. It’s read to them from which part of the country a pie was ordered and it makes them feel that much less alone.

    It may seem like a small, kind of silly thing, but trust me, it means a lot.

  34. 34
    penpen says:

    @dr. bloor: Not likely since the focal point of his rage is Obama, and he will loathe empowering him in any way. Plus, his grandstanding of the past year has made it painfully clearer that Scalia is a good solider for the Conservative cause. He will not abandon that cause. If anything, he will vent by making any dissents he writes even snottier, but that’s about it.

  35. 35
    IowaOldLady says:

    One of my truly shameful fantasies is that Scalia and Thomas are on the golf course together and are struck by lighning in a clear Act of God.

  36. 36
    GregB says:

    Scalia looks like he’s a bottle of Jack Daniels and an undercooked steak away from living out the final scene of There Will Be Blood.

  37. 37
    MikeJ says:

    @IowaOldLady: The shortest path to ground would be through Scalia’s fundement to Thomas’ tongue and down to his knees and the ground.

  38. 38
    jl says:


    My best guess to. Roberts wants accomplish reactionary judicial goals quietly, and done with some legal craftsmanship.

    I remember some Cenk Uygur rants that any sane person with legal training can spot Scalia as a fraud, and that he thought so even back in the day when he was still in GOP.

    I took the plunge and read some Scalia interviews and opinions, and I think Uygur was wrong about one thing: you don’t really need legal training to see fishy stuff. Some of his national security/civil liberties rulings dissolve into pants pissing yelps of terror, nothing more.

    Scalia’s interviews on his supposed coherent judicial philosophy are not impressive. Scalia natters away, very conceitedly, about how his deep thought is so deep, and developing so very profoundly (you are welcome!) that he cannot tell whether he is an originalist, a textualist, an plain languagist, or a whatnot. But I didn’t see where he could articulate very well what any of those words meant.

  39. 39
    Jay C says:

    Not that I’m an expert on these matters (though you wouldn’t know it to read my blog-comments), but CJ Roberts has always seemed to me to at least one big degree less scary than Antonin Scalia. If only because Roberts – for whatever his ideological bent(s) – at least seems to take the job seriously enough to consider thinking about the cases they hear; rather than (as it usually seems with Scalia and Thomas) simply ruling according to their pre-conceived prejudices. Not a vast improvement, but a step up (even if a small one) from his closed-minded AJs on the Right.

    Oh, and I agree that Don Nino and Silent Clarence are only going to be leaving the SCOTUS on stretchers (or in boxes) while there’s a Democrat (especially the Hon. B.H. Obama) as President.

  40. 40
    👽 Martin says:

    @IowaOldLady: Not so shameful. I’m pretty sure they have the same fantasy about poor people.

  41. 41

    Hmmmm, after reading your post it occurred to me that perhaps Roberts’ motive for deciding in favor of ACA was not in any way a legal statement or a principled stand, so much as a power play to let Scalia and the other conservative Justices just who was really in charge.

  42. 42
    lamh35 says:

    Polls: Obama holds the edge in Florida, Ohio and “Virginia”

    After two political conventions and heading into the post-Labor Day sprint, President Barack Obama leads Republican nominee Mitt Romney in the key battlegrounds of Florida, Ohio and Virginia, according to new NBC News/Wall Street Journal/Marist polls of each of these three states.
    In both Florida and Virginia, Obama is ahead of Romney by five points among likely voters (including those leaning toward a particular candidate), 49 percent to 44 percent.
    In Ohio, the president’s lead is seven points, 50 percent to 43 percent.
    Among a larger pool of registered voters, Obama’s advantage over Romney slightly increases to 7 points in Virginia, 8 in Florida and 9 in Ohio…”

    The pollster of course adds the “Obama’s lead is not insurmountable” which I am beginning to think just means the pollster is CYA so as not to seem biased, but…still.

  43. 43
    var says:

    Marist NBC WSJ has Obama up by 5 or more in Fla OH Va. Not good for theVillagers

  44. 44
    gnomedad says:

    Well, he did swear the Usurper in. Twice, in fact.

  45. 45
    Omnes Omnibus says:

    @eric: I largely agree with this. Roberts is going to do the most conservative and/or business friendly thing that the text of both the statute in question and the Constitution permit. He does seem to be someone who, when trapped by those things, will accept it and rule accordingly. But don’t ever consider him to be on our side. He isn’t.

  46. 46
    JR says:

    Here’s where he has power: he assigns the opinions when he’s on the majority side.

    Scalia’s never been the one everyone tries to persuade except in a few very, VERY narrow contexts. His strength has always been his ability to push an opinion to the very extreme edge that will still garner the necessary votes, moving the issue as far to the right as the rest of the Court will tolerate.

    Theoretically, then, what Roberts can do is deny him the big opinions on the major cases, consigning him to write stern and bombastic concurrences or separate dissents. That’s really the only advantage he has. He can give some more opinions to Kennedy and Alito, fewer to Scalia, and save the best for himself.

  47. 47
    Catsy says:

    @lamh35: What is interesting about that VA poll is that it doesn’t appear to include Virgil Goode in any of the questions by name (and only indirectly as “Other”).

    So if Obama is ahead by 5 points under those circumstances, that lead can only widen once Goode starts playing Perot to Romney’s GWB.

  48. 48
    jl says:

    @Ms. D. Ranged in AZ (formerly IrishGrrrl):

    From what I read, Scalia and the reactionary wing tried the power play. They were the ones who turned down compromises offered by Roberts. And they lost the chance to do more damage for ACA, and looks like Roberts’ legal analysis designed to further weaken the Commerce Clause in future cases was not enough to make them happy (though Roberts was going to put that in anyway).

  49. 49
    WereBear says:

    @IowaOldLady: Kind of like the scene in Caddyshack?

    Mmm. Me likey.

    And I just gotta ask: Scalia was ever relevant? He’s lotsa things, Fat Tony, but he’s never skated close to relevant in any law-scholarship-kinda-way.

  50. 50
    Omnes Omnibus says:


    And I just gotta ask: Scalia was ever relevant? He’s lotsa things, Fat Tony, but he’s never skated close to relevant in any law-scholarship-kinda-way.

    He popularized the idea of “Orginalism.” He never practiced it, and it is pretty much bullshit as a theory of Constitutional jurisprudence. The dude, however, was the face of the theory in the popular press.

  51. 51

    @MBunge: You got it exactly. Roberts is a tool for big business. And big business(the insurance companies) wanted the PPACA. They just didn’t announce it publicly. After all, Roberts has never, ever, voted against the Chamber of Commerce. And guess who didn’t weigh in with an official opinion on the PPACA? If you guessed the Chamber you’d be correct.

  52. 52
    Spaghetti Lee says:


    Perot got over 10 points in both elections, as I recall. Does anyone really think Goode will achieve that? Honestly asking.

  53. 53
    Dennis SGMM says:

    @Omnes Omnibus:

    He popularized the idea of “Orginalism.”

    Scalia has no idea how the Founders wiped their asses, let alone knowing what their broader intentions were. Originalism is the worst kind of mystical bullshit. It presupposes that we can interpret the thoughts of people who lived more than a two hundred years ago. Fuck me, it’s deciding by a one-man seance.

  54. 54
    The Fat Kate Middleton says:

    @EconWatcher: I saw her perform twice, and ‘yes’ is the answer to your question. But I still think Emmy Lou Harris has her beat, both in looks and musical talent.

  55. 55
    SFAW says:

    @Dennis SGMM:

    Originalism is the worst kind of mystical bullshit.

    Only if you assume that Nino is sincere about it. Me, I’m thinking that it’s just his code word/phrase to “justify” his continual attempts to free the “Constitution in Exile” from its shackles, and to roll back the New Deal.

    Seriously – how many times has he used it as an excuse for his radical activism? More times than I can count – even if I take off my shoes and socks.

  56. 56
    Maude says:

    @Dennis SGMM:
    You rap under the table and I’ll do the floating voice.

  57. 57
    Omnes Omnibus says:

    @Dennis SGMM: Man, you’ll get no argument from me on any of that, but the question was what has he done, not what has he done that has value.

  58. 58
    WereBear says:

    @Omnes Omnibus: Gotcha.

    However, and I’m sure you know this too, it was all bull pucky and is only kept alive by constant wingnut CPR.

  59. 59
    Quaker in a Basement says:

    October 1 may be the first day of the post-Scalia era.

    Couldn’t happen to a nicer goombah.

  60. 60
    Bill Arnold says:

    @Linda Featheringill:

    We expect that Roberts has been getting hell for his ACA decision but do we have any evidence of that? Gossip? Unnamed sources?

    No clue about the feedback from the decision. I am still stuck on wondering why he ended up supporting it (to the extent he did). I.e. wondering if it was an actual intellectual argument that was the deciding factor, rather than politics or legacy.

  61. 61
    Miki says:

    I swear on my mother’s grave, this is what I first read in that block quote:

    … Though the faces feces will be the same, the Court that appears from behind the curtain on October 1 will not be the one that vanished behind it on June 28.

    I’m stickin’ to my story ….

  62. 62
    Miki says:

    @The Fat Kate Middleton: @The Fat Kate Middleton: They’re both beautiful women, but Linda Ronstadt kicked their butts then – and now.

  63. 63
    JustAnotherBob says:

    @The Fat Kate Middleton:

    Absolutely agree. Comparing an A+ and an A++….

  64. 64
    Shlemizel says:

    Bullshit. Next month Roberts will return to form and the 5-4 wingnut brigade will rule as it has

  65. 65
    mainmati says:

    @EconWatcher: yeah, she was really that gorgeous and her voice just heightened it further.

  66. 66
    Burnspbesq says:


    was she as impossibly beautiful as she looks on those album covers

    Pretty much, but before you pledge your troth, be sure to check out some photos of Linda Ronstadt and Emmylou Harris from that time.

  67. 67
    Burnspbesq says:


    It’ll warm the cockles of my heart of Roberts goes full Souter in a few years

    I’ll believe it when UT’s admission policy and Section 5 of the Voting Rights Act both survive.

  68. 68
    Brother Shotgun of Sweet Reason says:

    @Miki: Yep, Rondstadt was my fave. Saw her at the Troubadour, the Palomino, and a couple of other places back in the early 70s. Front row seats, once.

  69. 69
    LosGatosCA says:


    Correct even though the age roles are reversed in the joke, Scalia is the young (impatient) bull and Roberts is the old (patient) bull in the classic joke.

    Worse, Scalia’s impatience is counterproductive in completing Robert’s mission to ‘fuck them all’ by making the cows stampede in the other direction.

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